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Fracking battles in Texas continue to heat up

As we reported on our blog, the City of Denton, Texas recently became the first Texas municipality to enact an ordinance banning the drilling technique known as hydraulic fracturing, or “fracking.” As was predicted, the Texas Oil and Gas Association filed a lawsuit challenging the ordinance within hours of its passing. In addition, the Texas General Land Office filed a lawsuit seeking a permanent injunction prohibiting the City from enforcing the ban. Both suits are in their infancy, but the parties are beginning to lay the foundation for their legal arguments.

For example, the City of Denton asserted in its Answer to the Texas Oil and Gas Association’s lawsuit that hydraulic fracturing activities taking place in the Barnett Shale constitute a “public nuisance”: the fracking “activities have caused conditions that are subversive of public order and constitute an obstruction of public rights of the community as a whole. According to the City of Denton, such conditions include, but are not limited to, noise, increased heavy truck traffic, liquid spills, vibrations and other offensive results of the hydraulic fracturing process that have affected the entire Denton Community.” The City claims it has the right to abate and prevent such a public nuisance under its regulatory powers–and that such regulatory powers are not preempted as the Oil and Gas Association contends.

In response to the Texas General Land Office’s lawsuit, the City recently moved to transfer venue from Travis County (where the suit was filed) to Denton County. In its motion, the City included the same allegation with respect to hydraulic fracturing constituting a “public nuisance.”

We will continue to monitor developments in the litigation involving the Denton fracking ban. As I suggested in my blog post on Denton’s ban, there could be significant implications if the ban is upheld — including “me too” ordinances in other municipalities.

Indeed, it was reported yesterday that Reno, Texas — a small city about 50 miles west of Dallas — is also considering a fracking ban. As the article notes, “the fact that other Texas cities may take Denton’s lead on [instituting] a ban could signal a shift in thinking in the Lone Star State” and “Texas-based fracking bans could have a substantial impact on the state economy — and perhaps even the national economy, too.”